Category Archives: Supreme Court

It’s no surprise, I suppose, that the U.S. Supreme Court has rejected an appeal from a New York Times reporter who has been seeking to avoid being sent to jail for his refusal to testify about his sources. The ruling is a setback for reporter James Risen and for the entire enterprise of journalism as well. The reason: the high court cannot find protection for reporters in the U.S. Constitution.

The First Amendment famously says (in part): “Congress shall make no law . . . abridging the freedom of the press.” As I have written, I believe that the First Amendment goes beyond the right to disseminate news and includes the right to gather news. In some situations, that news-gathering function, also known as reporting, may require reporters to extend a promise of confidentiality to a source. I believe that they have a constitutionally protected right to do so. (Actually, to be precise: I believe that you and I and the rest of the American people have the right to learn what the journalist can learn — that is, we are entitled to information, especially controversial, secret information, that will enable us to make good decisions about powerful institutions.)

Many people disagree. They invoke the ancient legal doctrine which holds that justice demands every person’s testimony — no exceptions (oh, except for the “testimonial privilege” widely granted to clergy, attorneys, spouses and others — plenty of people enjoy the right not to testify with no deleterious effects on society). Superficially, this makes a certain amount of sense. But it overlooks the chilling effect on both sources and reporters if journalists can be dragged into court and ordered, under oath, to break their word and reveal the identities of their confidential sources. The fully predictable result of this doctrine will be that the people will not learn all that they might about difficult, hidden truths.

And a word here about criminal justice. Obviously, the investigation, prosecution, and punishment of crime is an important value in society. I would not want to live in a society that did not suppress crime. But we must bear in mind that law enforcement is not a transcendent value; it is not so important that it can be used to sweep away all other rights and values. It has to be balanced against other important priorities (like being secure in our persons and papers).

I maintain that it is better for a handful of prosecutors to miss out on the testimony of a handful of people than it is to impose blinders on the press. I don’t want to live in that kind of society, either. Prosecutors pursue justice; journalists pursue truth. Those are both important, and sometimes allied, enterprises. But they are not identical, and when they conflict, my default position would be to privilege truth-seeking.

Also, bear in mind: prosecutors have plenty of techniques and powers that journalists don’t have.

–They have the power to subpoena (non-journalist) witnesses and question them under oath.

–If witnesses lie, prosecutors can charge them with perjury.

–Prosecutors have the power to induce suspects to talk by negotiating plea-bargains.

–Prosecutors have the home-team advantage in every courtroom in the country.

–Prosecutors have the power to get a search warrant and spy on suspects.

If prosecutors can’t solve a particular crime with all those powers (which journalists don’t have), then maybe they’re just not trying hard enough.

One implication of today’s Supreme Court ruling: until there is a new array of justices on the high court who properly understand the Constitution, I guess the only remedy is to support legislation (S. 987) to create a federal shield law for reporters. Incidentally, most states already have shield laws that protect journalists in state courts, and we have not suffered any terrible crime wave as a result. All those state AGs and DAs somehow manage to live with laws that uphold press freedom and balance it against the imperatives of law enforcement.

In its latest ruling on the role of religion in public life, the U.S. Supreme Court got it wrong (again). The court issued a ruling this week written by the narrow majority of five justices who often vote together as a bloc that seems dedicated to keeping things just the way they are. The opinion was written by Justice Kennedy, joined in whole or in part by justices Roberts, Alito, Scalia and Thomas — an enduring coalition of Republican-nominated originalists, textualists, conservatives, traditionalists. It’s also relevant in this connection that they are also all Catholics.

In their ruling in Greece v Galloway, the majority held that it was constitutional for a small town in upstate New York to open all its town board meetings with a prayer. Reading all the majority opinions, I find the following rationales for this wrong holding:

1. An appeal to tradition. Basically, the five conservatives believe that the practice is okay because “we have always done things this way.” On those grounds, Americans would still maintain slavery, jail homosexuals, criminalize birth control, prohibit the sale of alcohol, and deny women the right to vote.

2. A popularity contest. The five conservatives engage in a bit of sociology and observe that most folks in Greece, N.Y., are Christians, so it does not surprise or dismay them that when the town solicits local clergymen to offer the public prayer, the response comes every time from Christian clergy. That’s exactly why their ruling is so wrong and dangerous: it perpetuates the domination of the majority over the minority. In so doing, the conservatives give force of constitutional approval to the routine violation of the conscience of any person in Greece, N.Y., who is not a Christian. In order to conduct their public business, such people must bow to the coercion of their mostly Christian neighbors or risk small-town opprobrium.

3. Those prayers are just for officials, not the public. The conservatives assert (with no evidence) that the prayers at the start of the public meetings are for the benefit of the town officials and are not aimed at the members of the general public in attendance. If so, then why subject non-believers to this public ritual? The officials should move their pre-game prayers into the locker room.

4. It could be worse. At least, that’s Thomas’s view. In his concurrence, Thomas states his view that the Constitution imposes a ban on an official religion only at the national level. He cites the 10th Amendment for his view that the states — some of which had established religions at the time of the nation’s founding — retained their rights to establish religions (and presumably, allow those theocratic states to impose taxes on religious dissenters to support the religion preferred by the majority, so if Thomas, a Catholic, settled in Utah, he might have to support the LDS religion, which his pope would not approve). Thomas reads the First Amendment literally and emphasizes that when it says “Congress shall make no law respecting the establishment of religion. . .” that means Congress alone among the nation’s legislatures is restrained from doing so. While he’s at it, Thomas also waves off the 14th Amendment and tells American citizens that it doesn’t mean what they think it does.

So, there you have it. Five robed men have decided that every government meeting in the country may commence with a generically Christian prayer. What’s wrong with this?

In my view, the majority position shows a lack of understanding of what it means to live in a diverse society. The founders themselves recognized their differences and addressed a question that is fundamental to American society: how can people who are different live together in harmony?

How can the Jew and the Muslim support a common school system? How can the Catholic and the Protestant agree on eligibility for public office? How can the atheist, the Buddhist, and the druid all agree on which holidays to observe officially?How can the Baptist, the Mormon, and the agnostic all serve together in units of the armed forces? Can anyone use the power of government to favor one religion over another (or religion over non-religion)? If I can use government power to impose an outward show of loyalty by someone who does not believe as I do, am I not violating that person’s conscience? (It’s easy to see that a Catholic in colonial Massachusetts might object to supporting the Congregational Church, and it’s not that hard to see how an atheist with business to conduct at the Greece, N.Y., town meeting might feel coerced into listening without objection while a Christian clergyman opens the public’s business by asserting “the saving sacrifice of Jesus Christ on the cross.”)

For the five justices who made up the majority in this case, consider this thought experiment:

A robed man wakes up in a place that is new to him. He begins to observe his new neighbors. He is told that if he wants to remain unharmed in their midst, he must attend a meeting of the people. The meeting begins with a ritual that the people have observed for generations. They believe in the transforming power of the blood of a dove. So, an unrobed man begins the public meeting by cutting the head off a dove and swinging the bleeding corpse over the heads of the gathering on a long string attached to the bird’s feet. He swings the bird in a clockwise fashion so that all the people are sprinkled by the bird’s blood. (A few dissenters grumble privately that the man should be swinging the bird counter-clockwise, but they hold their tongues, because they know that at the next meeting, there will be a counterclockwise ceremony.) The robed stranger objects to this gruesome ritual and tries to shield himself from the bloody spattering. His new neighbors are horrified by this rejection of the ancient ways of their forbears and decide that whatever the robed man wants , he is not going to get it until he submits to the tradition of the majority.

So, Justices Kennedy, Scalia, Alito, Roberts and Thomas, I ask: what’s the problem in this scenario?

[Extra credit: here’s an introduction to the long history of this issue.]

It’s bad enough that some of the justices on the Supreme Court who are considering whether to authorize police searches of suspects’ cellphones are pretty clueless about this ubiquitous piece of technology. What really concerns me is that none of the justices expressed any concern about the First Amendment. (Or at least if they did, none of their questions broke though into the media coverage of this week’s arguments.) All the attention was focused on the Fourth Amendment, which says:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now, don’t get me wrong. That is one fine amendment, and I don’t want to take anything away from its important safeguards. It says that police cannot just barge into your home or office and start grabbing documents. If they want to search your stuff, they have to get a warrant from a judge, and the warrant must “particularly describe” what the police expect to find.

When it comes to cellphones, there are no “papers” involved, but I think even this Supreme Court can figure out that a digital document like a text or a photo fits the meaning of what the Founders meant to protect.

Here’s where the First Amendment might enter the picture.

Consider this scenario:

A journalist is walking down the street and notices a political protest. She whips out her cellphone and uses it to make audio recordings of the natural sound as well as some interviews; she takes some photos; and she starts taking notes on the disturbance in the form of a draft email that she intends to send to herself and her editor later. Things heat up, and the police start beating protesters. Our journalist considers this newsworthy and begins taking close-up photos of police officers whaling away on protestors. A police officer orders her to stop. She refuses on First Amendment grounds and attempts to photograph his badge number and name tag. He slaps the cuffs on her and confiscates her cellphone.

What now?

Didn’t she have a First Amendment right to gather information and take photos in public? Doesn’t she have a First Amendment right to protect the identities of any confidential sources who are listed in her cellphone “contacts”? What if she has other photos, data, messages, texts and the like in her cellphone about stories in progress? Should the police, or the FBI, or the local prosecutor have the right to rummage through her cellphone without limits? Would she have a First Amendment right to remotely tell her cellphone to purge itself of all data? Would she then be committing the crime of destroying evidence, or would she be exercising her right to engage in news-gathering and dissemination?

Or, consider a second scenario:

A reporter is arrested on a DUI charge. (I know, most reporters can’t afford that much booze any more, but it could happen.) He fails a field sobriety test and the cuffs come out. Do the police have any business looking into the contents of his cellphone, since it has no bearing on the crime at issue?

Maybe if the justices on the high court used their cellphones a bit more often, they’d be more alert to these sorts of issues. Or maybe not. But I would bet that if they approve cellphone searches, something like one of these scenarios will occur pretty soon.

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 seditious libel case against the printer John Peter Zenger established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

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Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

Here is an excerpt from a recent interview in New York magazine with Justice Antonin Scalia, in which he discusses his news consumption habits with interviewer Jennifer Senior.

What’s your media diet? Where do you get your news?
Well, we get newspapers in the morning.

“We” meaning the justices?

No! Maureen and I.

Oh, you and your wife …

I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore.

What tipped you over the edge?

It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?

No New York Times, no Post.

And do you look at anything online?

I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?

Sometimes NPR. But not usually.

Talk guys?

Talk guys, usually.

Do you have a favorite?

You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people.

That’s what producers get paid for.

That’s what’s wrong with those talk shows.

Let’s talk about the state of our politics for a moment. . .

I don’t know about you, but I cannot believe that a Supreme Court justice — any Supreme Court justice — can get by without reading the Times. For Scalia not to know what just a single Times reporter, Charlie Savage, is reporting is either not true or it is not professional. If we take him at his word, Scalia confines himself to

(1) a Murdoch paper,

(2) a paper that may be the worst in the country (the Washington Times, owned by a crazy Korean religious cult figure), and

History keeps happening. Now, a U.S. appeals court has ruled that the activity of hitting “Like” on a Facebook is a form of expression that deserves free-speech protections under the First Amendment.

An earlier ruling in a lower federal court went the other way. But on Wednesday (9/18), the 4th Circuit Court of Appeals in Richmond reversed and said an employee who “liked” a political candidate was engaging in political speech and therefore cannot be punished by his employer.

From the AP story in today’s Boston Globe:

Facebook and the American Civil Liberties Union, which filed friend of court briefs in the case, applauded Wednesday’s ruling.

‘‘The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally,’’ said Ben Wizner of the ACLU .

This ruling seems not only common-sensical, but it also seems to right a terrible wrong: when the Supreme Court said that spending equals speaking, that gave rich Americans a tremendous advantage in the competition to make points in the public sphere. This ruling says that using Facebook is a form of speaking, too, so it deserves protection.

A federal appeals court recently dealt a blow to press freedom by ruling that there is no legal basis for an American reporter to protect the identity of a confidential source if a prosecutor demands to know it. This is not the last word on the subject, but still, it was a setback because the ruling last Friday came from the 4th U.S. Circuit of Appeals, the level just below the Supreme Court. (Not only that, but the 4th Circuit has jurisdiction over Virginia and Maryland, which covers a lot of federal agencies, including the Pentagon and the CIA.)

The case is important because it is part of a recent upsurge in federal cases attempting to stop “leaks” of classified information by intimidating journalists. The case is also important because it strengthens the hand of the Justice Department and federal prosecutors (at least in the 4th Circuit) to chill whistle-blowers, pressure journalists to give up their sources, and jail those reporters who won’t do so.

The July 19 ruling runs to 118 pages. Below is my analysis of all the major points made in both the majority ruling and the dissent. Overall, I find that the majority ruling was arbitrary, biased, and flat-out wrong. I believe that the dissent has it right.

I am approaching this ruling not as a lawyer, judge, prosecutor, or law professor. My main credential is one that I share with all the parties (including the judges) in this case: CITIZEN. I believe I have a right to read the Constitution and the statutes and the evidence, draw my own conclusions, and share them with you. I approach this as an advocate for press freedom. To be specific, I am an advocate of the public’s right to know what our government is doing. To that end, press freedom is instrumental, but it is also incidental. The real purpose of the First Amendment is to ensure that we, the people, would always have the means to gather and share the information we need to govern ourselves and prevent the resurgence of tyranny.

[Some brief background: The case is U.S. v. Sterling. It is a criminal case against Jeffrey A. Sterling, a former CIA officer who has a major beef with the agency. Sterling, who is black, has charged the CIA with racial discrimination, and he has a conflict with the agency over material he would like to publish in his memoir. The CIA claims that he divulged classified information to a journalist in violation of the Espionage Act of 1917, as amended. Sterling maintains that he is a target of CIA retaliation because he divulged a botched operation. The journalist in question is James Risen, a Pulitzer Prize-winning expert on national security and veteran reporter for the New York Times. He is also an author of several books, including the one at issue, State of War (2006, Free Press). In the book, Risen revealed details about a CIA operation aimed at undermining Iran’s nuclear program. Federal prosecutors issued a subpoena ordering Risen to appear before a grand jury and reveal his source. Risen has refused and vows to go to jail instead. The underlying case, U.S. v. Sterling, has yet to come to trial. The 4th Circuit ruling had to do with pre-trial motions in the Sterling case. The constitutional issue is whether, under the First Amendment or some other basis, reporters in America have the right to protect the identity of their sources, even when they are ordered to do so in a criminal case. In other words, do they enjoy a legal “privilege” that frees them from having to give testimony? Do they have a “testimonial privilege”? If so, is it absolute?]

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The Circuit Court opinion begins with the majority ruling (in a 2-1 split), written by Chief Judge William Byrd Traxler, Jr. The majority opinion opens with some factual background, covered above.

p. 5

Traxler notes that Sterling was indicted on a charge of illegally disclosing classified information and observes that

he may have done so in retaliation for the CIA’s decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs.

So, as to MOTIVE, Sterling is not accused of “aiding the enemy” – unlike, say, leaker Bradley Manning.

p. 6: In 2000, Sterling filed a federal lawsuit against the CIA charging employment discrimination – a classic “disgruntled employee” if there ever was one. These folks are the natural target for reporters.

p. 7: In Oct. 2001, the CIA sacked Sterling.

He was reminded of his legal duty to protect secrets and asked to sign an acknowledgement. He refused.

p. 8: March 4, 2003. Sterling filed a second suit against the CIA, protesting the way they wanted to censor his memoir.

March 5, 2003. Sterling goes to the Senate Intelligence committee and divulges information to staffers about the Iranian intel program.

“Telephone records indicate that Sterling called Risen seven times between February 27 and March 29, 2003.”

Hmmm… wonder how the government got those phone records. Still, no crime there.

One thing that’s clear: Sterling and the agency are developing a world-class hatred for each other.

p. 9:

“On April 3, 2003, Risen informed the CIA and the National Security Council that he had classified information concerning Classified Program No. 1 and that he intended to publish a story about it in The New York Times. In response, senior administration officials, including National Security Advisor Condoleezza Rice and Director of the CIA George Tenet, met with Risen and Jill Abramson, then Washington Bureau Chief of The New York Times, to discuss the damage that publication would cause to national security interests and the danger to the personal safety of the CIA asset involved in the operation. Several days later, Ms. Abramson advised the administration that the newspaper would not publish the story.”

Worth noting: The government made a reasoned request to protect a current “asset” – which is to say, an active spy. The newspaper agreed. Fat lot of good it did them. You do the govt a big favor and they turn around and screw you.

p. 10: Jan 2006, Risen publishes State of War, in which he used the stuff that the Times would not publish. [Presumably, that “asset” was long gone by then.]

“Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.”

Dec. 22, 2010, Sterling indicted. Subpoenas issued for Risen to testify before grand juries and identify his source. He moves to quash the subpoena (i.e., make it go away and end his legal problem).

p. 12:

“The district court held that Risen had “a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist,” id. at 951 (emphasis added), and that the government could overcome the privilege only by meeting the three-part test that this circuit established for reporters’ claims of privilege in civil cases in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986).”

So, in the first round, Risen actually won. The district court judge agreed that the First Amendment protects journalists in most situations. (Hence, the “qualified” privilege. See below.)

p. 13. Oh, and by the way, the government would like to protect the identity of its secret witnesses while forcing Risen to name his. That’s rich, but, of course, they are going to get their way.

p. 15-16: Traxler announces the new bottom line:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.” [emphasis added/ CBD]

As his main precedent, Traxler cites the 1972 Branzburg case, decided 5-4 by the U.S. Supreme Court. On a close call more than 40 years ago, SCOTUS said it could not find a legal “privilege” for a journalist in the First Amendment. In plain English, that means that the news-gathering function of journalism does not extend to protecting sources – at least not when doing so conflicts with the duty of prosecutors in criminal cases to bring “every man’s evidence” into court. The journalists had hoped to establish that – like doctors, psychotherapists, spouses, clergy, and lawyers themselves – members of the public have an interest in knowing that they can confide in any of those people without having their confidences betrayed in open court. I believe that the Branzburg ruling was wrong, if narrowly so, and it has been under attack ever since.

Getting back to the quoted section above, here’s a question: What about a confidential source who does not commit a crime? In that case, the journalist is neither a participant nor a witness to a crime. It’s actually far more common for confidential sources to tell journalists about third parties, which Traxler does not address here. What if the confidential source does not hand over any purloined documents or commit any crime in the journalist’s presence? What if the source merely describes the misdeeds of others?

Moreover, what about a Wikileaks style work-around where the journalist has to protect his/her own identity?

What about anonymous posting (like 18th Century pamphleteers?)

Another alternative: Journalists could decide to live with the Branzburg rules and encourage journalists to go to jail and honor those who do so. We could create a Hall of Fame, or we create a special prize and give them each $1 million for their service to the profession and the general public.

[NB: Traxler also relies heavily on the 2005 Judith Miller case. In that instance, her source – Scooter Libby – was committing a crime in the reporter’s presence (whether Miller realized it or not) by outing Valerie Plame, then an active CIA agent. But what if he were not actually committing a crime?]

If there is no legal/constitutional remedy, maybe there is a technological or behavioral remedy. Journalists could change their technology or their techniques. Maybe they need to improve their tradecraft – safer transfers of documents and data, untraceable meetings, disguises, meetings in other countries, go-betweens, etc., etc.

If they insist on criminalizing journalism, then must journalists learn to act like criminals? The mob always esteemed “stand-up guys” who would take their punishment rather than rat out their associates. Is that the model Traxler is pushing us toward?

Why doesn’t the government do a better job of protecting its own whistleblowers? Why do they have to resort to telling journalists?

p. 25:

“The Branzburg Court considered the arguments we consider today, balanced the respective interests of the press and the public in newsgathering and in prosecuting crimes, and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

Do I detect a certain amount of glee in these opinions when judges have the chance to uphold the power of prosecutors (and, of course, judges) to compel reporters to do things?

p. 26: Here, Traxler does something of an about-face and says it would be fine to give an alternate reading to Branzburg in civil cases. Traxler would grant a qualified reporter’s privilege in civil cases. It’s just the criminal cases where the law enforcement is transcendent over the public’s right to know. Since when does law enforcement trump all other values, goals, priorities?

[Note that the privilege is always qualified; judges always want to be able to put their thumb on the scale of justice. They say: We are not going to give you something once and for all; any time you want to exercise that right, you have to come into court and beg a judge for it. Thanks a lot!]

p. 27: Traxler calls for a “balancing approach” – which translates into arbitrary judicial discretion as far as I can see. When a reporter is about to talk to a source, is he/she really supposed to project ahead and guess correctly about how that “balancing” is going to turn out in his/her case? Fat chance. That is completely unrealistic.

p. 28: Traxler keeps clinging to this obscure clause in Branzburg that offered remedies at law for journalists who are faced with prosecutions intended to “harass” the reporter or carried out “in bad faith.” What is that about? How often does a court decide that a prosecutor has acted in bad faith? That’s a non-issue, a red herring.

p. 29-30: More on the criminal/civil distinction. But: the fact is, some crimes are petty and some civil actions are momentous. I don’t believe it is true that every criminal matter is by definition more important than any civil matter. That strikes me as dogma (or a device for getting to some desired outcome). Some criminal cases, even felonies, involve small potatoes like selling a couple of ounces of marijuana.

[Let’s all keep in mind The BIG PICTURE in the Sterling case: the CIA pissed off one of its agents, and he went rogue, and they want to crush him. Risen is caught between the two antagonists.]

p. 32: Risen also raised a claim to a “common-law reporter’s privilege.” By “common law” he means law that is made by some fashion other than the Constitution and the acts passed by Congress. Usually, this means judge-made law that results from rulings made over time that produce trends. Traxler begins by citing Branzburg saying no common-law privilege existed. But that was as of 1972. Has the common law evolved since then? (which is the nature of common law, no?)

p. 36: Traxler analyzes the common-law argument, based on Rule 501 in the federal rules of evidence, which was passed by Congress, afterBranzburg. In comparing a reporter/source case to a psychotherapist/patient case, Traxler writes:

“Applying Rule 501, the Court weighed the competing interests and concluded that the plaintiff’s interest in obtaining evidence of the confidential communications in the ensuing excessive-force action was outweighed by the patient’s private interest in maintaining confidence and trust with his mental health provider and the public’s interest in protecting that privacy in order to “facilitat[e] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. As noted above, the Court also relied, in part, upon the fact that a psychotherapist-patient privilege was one of the nine, enumerated privileges considered when Rule 501 was adopted and had found near unanimous support in state laws as well.”

But Traxler misses the point here. The point is that in both kinds of cases, it is the PUBLIC interest that creates the privilege, not the personal or professional one. The public wants to know that psychotherapy patients as a class have a right to seek help from therapists as a class with confidence that the statements they make in therapy will not end up in court with the names attached. The public also wants to know that when they read a newspaper, there is no information missing because sources in general are afraid to approach reporters in general.

The public wants people in general to feel confident in talking to a doctor, lawyer, or clergymember. Likewise, the public wants people in general to feel confident in talking to a reporter.

Also, note: Branzburg did not forbid a journalist’s privilege as some kind of an evil. It just said that court couldn’t quite find it in the First Amendment. Now, if you are determined not to find one anywhere, you won’t. But if you are looking for one, there are a number of places you might find it. Much depends on one’s predisposition, and there are a lot of judges who are not predisposed to trust reporters.

In Traxler’s case, for example, here’s a passage from p. 37:

“Rule 501 thus leaves the door open for courts to adopt new common-law privileges, and modify existing ones, in appropriate cases. But nothing in Rule 501 or its legislative history authorizes federal courts to ignore existing Supreme Court precedent.”

So, the door is open, but Traxler (and his colleague who joined this majority opinion) does not want to walk through it. To my mind, that does not seem to dispose of this issue once and for all. If lower courts don’t make rulings that allow common-law rulings to accrete, how will the common law ever evolve?

BTW, what if judges had to divulge what goes on in-camera? How would they feel about that? What if they could not guarantee the confidentiality of sidebars or in-camera discussions?

p. 40: Traxler has a message for journalists: Even if we thought we could grant a common law privilege, we wouldn’t [So go fuck yourself!]

“First, unlike in the case of the spousal, attorney-client, and psychotherapist-patient privileges that have been recognized, the reporter-source privilege does not share the same relational privacy interests or ultimate goal. The recognized privileges promote the public’s interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications.”

Traxler completely (willfully?) misunderstands the issue. The party with the claim here is not really Risen as an individual (and not even Sterling). The party whose rights are being evaluated here is THE PUBLIC. The public has a compelling right to know things. If reporters cannot find things out, then the public will not find things out either. It’s that simple.

Traxler’s analogy here is not sound either. He says Risen does not deserve protection because he did not try to hide the information he obtained confidentially but, on the contrary, shouted it from the rooftops by publishing it. Well, what is a journalist supposed to do? Seek the truth and not share it with anyone?

Traxler is writing like a Martian who has never read a newspaper.

Besides, psychotherapists often write up cases and publish their findings in the professional literature but withhold the identity of the patient. That’s a much more apt analogy.

Pgs. 40-41: Speaking of Risen, Traxler writes:

“His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws.”

That’s not true, either, and he is imputing a motive to Risen that does not exist – or, at least, has not been proven. As a reporter, Risen had to make a decision about confidentiality in advance of knowing whether such communication violated any federal laws – and indeed, that is a matter of fact for a trial court, not something that Traxler should assume. (Again, the judge is showing his bias in this case; he clearly agrees with the government and has pre-judged the case against Sterling.) Traxler is pro-prosecutor and does not even recognize his own bias. I wonder how many other former prosecutors there are on the federal bench? And I wonder how many ex-journalists? (probably zero)

[Note to self: I am starting to warm up to the idea of a federal Shield Law, if only to take these determinations away from the Traxlers of this world – a conservative with a lifetime appointment can do a lot of damage. I have been reluctant to see journalists go hat in hand to Congress and ask for anything. My fear is that Congress will begin by giving journalists half a loaf — a crummy shield law loaded up with compromises — and later take it away altogether. That would not leave journalists where they are now; it would leave them worse off. Because Congress will have established the precedent of legislating about journalism, even though the First Amendment said it about as clearly as words can say anything: Congress shall make no law abridging the freedom of the press.]

TALK ABOUT COMMON LAW – WHAT ABOUT THE 49 STATES WITH SHIELD LAWS? DOESN’T THAT REGISTER?

If a reporter’s privilege is such a terrible idea and so likely to thwart the pursuit of criminal justice, why tolerate all these state laws? What about “every man’s evidence?” (a term that is not in the Constitution either; it is a legal doctrine, like the right to know)

p. 47: Here, Traxler puts all his cards on the table: Even if there were a qualified reporter’s privilege, we would still not extend it to Risen. He would not even meet the civil standard – the so-called “Larouche test.”

Under that standard, a reporter can be compelled to testify only if three conditions are met:

1. The info is relevant to the case at hand (duh!)

2. the info cannot be gotten by any other means (all prosecutors will affirm this)

3. There is a compelling interest in the info. (all prosecutors will affirm this, too)

In this case, Traxler (a former prosecutor) happens to side with . . . the prosecutors!

p. 50:

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information.”

Note that Traxler refers to “the crime” in one sentence and then catches himself two sentences later and writes (properly) of “the alleged crime.” Worth remembering: Nothing has been proven. Sterling has not been found guilty by a jury of anything, and he enjoys the presumption of innocence.

Besides: maybe it wasn’t Sterling. Or maybe it wasn’t only Sterling. Traxler accepts the indictment as if all matters of fact have been proven.

p. 52:

“During these proceedings, Sterling has often represented that he intends to point his finger at these third parties as the source of the leak. The district court’s ruling, however, would require the government to compel the testimony of every other possible source, sources who could do little more than assert their own privilege or offer a simple denial of guilt, while allowing Risen, the only person who can identify the perpetrator or perpetrators, to protect his sources from the criminal consequences of their behavior.”

Huh?

Why should the journalist have less protection than those possible miscreants? Shouldn’t he have at least as much – given that the journalist is not an instigator of any criminal activity and that he is serving a compelling public interest?

This ruling is upside-down.

p. 57: Traxler takes up the argument that there is a compelling interest in Risen’s testimony. This is rich: one of the reasons he cites is the “obvious” claim that national security is important. He cites Haig v. Agee to state that “no governmental interest is more compelling” – in other words, national security is tops or at least tied for first, compared to every other governmental interest. But that’s just his opinion. It is not a natural fact or a fact that is even self-evident.

Then, he has the chutzpah to argue that the national security interest extends to the methods of gathering and keeping secrets, including “the appearance of confidentiality” – which is exactly what reporters need in order to carry out their constitutionally protected role.

p. 58: Traxler betrays a disturbing willingness to go on a fishing expedition to find out all Risen’s sources.

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On to the DISSENT

p. 86: Judge Roger Gregory (the first black judge on that circuit, nominated by Bill Clinton; he is also a former litigator – and therefore someone who is not automatically inclined to believe or support the government) wrote the DISSENT, for himself. He begins by celebrating press freedom and noting its central role in self-govt.

p. 90: Gregory indicates that he actually read the pro-media affidavits, whereas there is no literary evidence in Traxler’s opinion that he is conversant with that other point of view. It appears that Traxler read only the prosecutor’s briefs.

QUESTION: Which of these revelations would any American want to put back in the bottle? They were all secret originally (maybe not Walter Reed), and they all had to be pried loose using confidential sources. Would we as a society be better off not knowing? Does Judge Traxler really prefer, himself, to learn only what the government wants him to know?

p. 98: Gregory’s bottom line:

I, too, would recognize a qualified reporter’s privilege in the criminal context, and evaluate the privilege using the three-part test enunciated in LaRouche as an “aid” to help “balance the interests involved.” 780 F.2d at 1139. I would add a caveat to this general rule, however; in cases involving questions of national security, if the three-part LaRouche test is satisfied in favor of the reporter’s privilege, I would require consideration of two additional factors: the harm caused by the public dissemination of the information, and the newsworthiness of the information conveyed.

p. 108: Gregory implies that the CIA is not trying to cover up vital national security secrets but is simply trying to cover its ass after a botched operation.

“This information is not extraneous. Quite the opposite, it portends to inform the reader of a blundered American intelligence mission in Iran.”

Gregory says Risen’s disclosures are definitely newsworthy. The final test is to balance that newsworthiness against the harm of disclosure.

Which raises the question: where’s the harm?

Gregory:

“. . .the Government has not clearly articulated the nature, extent, and severity of the harm resulting from the leak.”

This is classic. The government failed to do this in the Pentagon Papers case, too and lost as result. In this case, it must be asked: WHERE’S THE HARM? The stuff in Risen’s book came out years ago already, and what part of the sky fell? What’s the body count? As usual, there’s nothing but some egg on some faces.

p. 112: In his big rhetorical wind-up, Gregory laments the majority ruling written by Traxler:

I find it sad that the majority departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters. . .

Under the majority’s articulation of the reporter’s privilege. . . a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Amen.

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So, that’s where things stand. By my reading, as a citizen, I would say that while this ruling was a setback, it was just another battle in a long war. Branzburg was a close call back in 1972, and, while I believe the court got it wrong, my guess is that the Branzburg ruling is not destined to stand much longer. The surge of state-level shield laws, the closeness of these cases in federal courts, and the rightness of the journalist’s privilege all give me reason to hope that neither James Risen nor any other journalist ever has to go to jail for their efforts to inform the American people about the doings of their own government. We, the people, created that government (including the judiciary), and we should be able to make it do what we want.

“Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”